6th Global Forum on Intellectual Property: Ideas to Assets (part 2)

The second plenary session of the first day of the conference dealt with the issue of “IP and Innovation in an Age of Sustainability”. The

questions posed were two-fold. First, how can IP and innovation support businesses as they seek to remain resilient and sustainable? Second, how can we harness the forces of sustainability while seeking ever-more innovative and competitive companies?

The first speaker was David Kappos, a partner in the U.S. firm of Cravath Swain & Moore, and formerly the Director of the United States Patent and Trademark Office. In the face of the challenge to achieve an ever-higher standard of living in light of calls for sustainability, Mr. Kappos was adamant: we need to continue to innovate with shorter and shorter time lines for execution. The linchpin for doing so is to maintain a strong patent system for encouraging innovation. Following Mr. Kappos, Tan Shau En, Assistant Chief Executive of Commercialization at IPOS and Executive Director, IP ValueLab, argued for a central role by government in providing solutions to the sustainability problems posed to the panel. Mr. Logan Xie, VP Letv Global Patent, then offered a Chinese perspective. He implicitly agreed with Mr. Kappos for the need for increasing innovation protected by patents, but he did note that patent quality is an on-going problem.

The second day of the program witnessed two more plenary sessions, both of which yielded some fascinating observations about two quite disparate topics. The first session was devoted to the topic of “Innovation. It’s Not About Ideas: It’s About Making Ideas Happen.” This Kat came away with two general observations. First, there are various settings in which innovation is taking place, and each of them is seeking to solve the challenge of implementation in a different manner. First up was Tobias Puehse, VP MasterCard, Innovation Management, Digital Payments & Labs Asia Pacific. Mr. Puehse posed the innovation problem under his care at MasterCard in a socially challenging way: “MasterCard likes payments, customers less so.” As such, his focus is on developing innovation that will make payments a better customer experience. This Kat wonders to what extent there is disruptive potential for others to enter the payment space if a key component in customer retention is the payment experience. Time will tell.

Following Mr. Puehse was David Koris, the retired head of IP at Royal Dutch, but still very much involved in IP matters in various capacities. Mr. Koris spoke from his long-time involvement in strategic issues of IP at the corporate level. Against this background, this Kat expected to hear insights about how patents are used. He was quite surprised, therefore, when Mr. Koris made special (and recurring) mention of the centrality of trade secret protection, admitting that companies have paid lesser attention to trade secrets in the past. [Merpel muses that perhaps the recent federal legislation in the U.S. and the Directive in the EU may have some part to play in this.] Closer to home, Dr. Lim Jui, CEO of (NTU Innovation) and NTUitive described the challenge of trying to get the academic researchers at Nanyang Technological University to become more involved in innovation and entrepreneurship, referring to the task in terms of “herding cats.” One interesting aspect of this work was the suggestion that they try to identity promising technological developments rather than simply rely on bottom-up initiatives. This was part of the larger challenge within Singapore to encourage more risk-taking and entrepreneurial activity.

Dr. Lorenz Kaiser then spoke from a quite different innovation setting, as Division Director at Fraunhofer-Gesellschaft. Fraunhofer is Europe's largest application-oriented research organization, with 69 institutes spread throughout Germany, each focusing on different fields of applied science. The transfer by Fraunhofer of research results to industry is not merely a mantra, but is subject to explicit guidelines and targets. Given Germany’s distinguished patent culture, this Kat was once again surprised by the explicit attention that Dr. Kaiser made to the centrality of trade secrets. If not a sea change, this Kat still sensed a change in the narrative coming from what he always regarded as patent-centric environments.

The second plenary session was the always anticipated judges forum, this time on the topic --“do the courts have a role in encouraging technological advances which are in the public interest?” More specifically, how expansive should the courts treat the scope of relevant IP legislation in balancing between the public and private interests? Justice George Wei, of the Supreme Court of Singapore, focused on copyright and identified the issue how far to extend liability from direct infringement to include secondary infringement. Justice Wei stated that in his view the court’s role is essential “supportive”, which this Kat took to mean that the law should wary of siding too much in favor of the “public” interest at the cost of distorting the existing legal frameworks.

Following Justice Wei, Judge Qiu Jingwen, of the People’s Court of Guangdong Province addressed the challenges facing his colleagues and him as the Chinese legal system seeks to strengthen its competency in IP matters. Chinese judges are still wrestling with how to build a robust basis for adjudicating IP cases in light of both local Chinese law as well as international standards. Against this backdrop, the Chinese courts are beginning to take greater account of technological change in reaching their decisions in specific cases. Judge Qiu made the interesting observation that damage awards for IP infringement remain low, in part due to what he described as the “poor” quality of many patents and the inadequate evidence provided to support a damages claim.

In the roundtable discussion that followed, Justice Wei and Judge Qiu were joined by Justice Colin Birss of the High Court of England and Wales and Judge Kent Jordan the U.S. Court of Appeals for the Third Circuit. Perhaps the most interesting discussion point was whether IP law should be striving for greater international harmonization, with views expressed both in support of harmonization, on the one hand, and a concern for giving broad expression for the legitimate needs of different legal locales, on the other. An attractive suggestion to bridge this difference of view was embodied in the notion of “convergence” rather than full-fledged harmonization, although the difference between the two notions was not further spelled out. Perhaps here, as in so many other aspects of the law, the devil will be in the details.

Photo on top right by Sustainability Hub and is licensed under the Creative Commons Authorization-Share Alike 3.0 Unported